11-19-2019 Small Cell TowersCorporate Overview Presentation
Regulating Small Wireless Facilities in Right-of-Way
W. Scott Snyder
ssnyder@omwlaw.com
(206) 447-7000
Small Cell - Is more than a Small Antenna Box
Antenna
Fiber & Coax Conduit
Power Conduit
New Fiber Service
Radios and Fiber Termination Box in a concealed shroud
Power Disconnect
What Happened?
Industry requests to install Small Cells – 2016
Cities preparing for Small Cell deployment
FCC Issued Declaratory Rule & Third Report and Order
Effective Date: January 14, 2019
Pending appeals – 9th Circuit & 10th Circuit
No automatic stay – Pending request
Definition of Small Wireless Facilities
(l) Small wireless facilities, consistent with section 1.1312(e)(2), are facilities that meet each of the following conditions:
(1) The facilities—
(i) are mounted on structures 50 feet or less in height including their antennas as defined in section 1.1320(d), or
(ii) are mounted on structures no more than 10 percent taller than other adjacent structures, or
(iii) do not extend existing structures on which they are located to a height of more than 50 feet or by more than 10 percent, whichever is greater;
(2) Each antenna associated with the deployment, excluding associated antenna equipment (as defined in the definition of antenna in section 1.1320(d)), is no more than three cubic feet
in volume;
(3) All other wireless equipment associated with the structure, including the wireless equipment associated with the antenna and any pre-existing associated equipment on the structure,
is no more than 28 cubic feet in volume;
Application to Macro Cells & Collocation
Materially Inhibit Standard Not Limited to Small Cell
New Definition of Collocation:
pre-existing structure, does not need to have a WCF on such structure.
Aesthetic Requirements
Reasonable
No more burdensome than those applied to other types of infrastructure deployments
Objective
Published in Advance
VS
Proprietary vs. Regulatory
Section 253 does not create a proprietary exception
Localities are fulfilling a regulatory function when managing the ROW – not proprietary.
“We confirm that our interpretations today extend to state and local governments’ terms for access to public ROW that they own or control, including areas on, below, or above public
roadways, highways, streets, sidewalks, or similar property, as well as their terms for use of or attachment to government-owned property within such ROW, such as new, existing and
replacement light poles, traffic lights, utility poles, and similar property suitable for hosting Small Wireless Facilities.”
DRAFT ORDINANCE
Federal Way
Interim Zoning Ordinance
Chapter 19.256 and Franchise and
Permitting Revisions Title 4
FRANCHISE – Exercise of Contracting Power
Washington Courts defer to City Council or
Stewards of the right-of-way
BUT
FCC – Tight time frame
A. Consolidate review with all needed permits
B. Basic contractual/franchise provisions for all ROC users
LAND USE
Federal shot clocks and Presumptive Safe Harbors
Right-of-way use not a “Land Use Action” – Ch. 36.70C (GMA)
Administrative Review of Sensitive Environments
A. Undergrounded Areas
B. New Poles
C. Design District – Downtown Decorative Streetlight District
D. SEPA, Shoreline and Critical Areas
Shot Clocks
What do shot clocks apply to?
Any approval that a local jurisdiction or siting authority must issue under applicable law prior to deployment of facility.
New Shot Clocks for SWF
60 Days to review an application to collocate on an existing structure
90 Days to review an application to locate on a new structure
CONSOLIDATED APPROVAL PROCESS
Other Approvals
Consolidated
Franchise
Staff/
Administrative Review
Small Wireless Permit
Design Variation
Concealment Review for New Poles and Design District
Environmental Review
60/90 days
Council consideration
Approve/Deny Contingent on Franchise
60 Days – Existing Poles
90 Days – New Poles
SMALL CELLS – KEY CONCEPTS
Incorporate federal shot clocks and Safe Harbors. FWRC 4.24.035.
Create Consolidated Review Process. Chapter 4.23
Treat small wireless in the rights-of-way like other utilities [not land use decisions – RCW 36.70B.160 and 36.70C.020(a).]
Adopt Small Wireless Aesthetic Design and Concealment Standards. FWRC 19.256.050.
Use Federal Standards – “Effective Prohibition” for review of deviations from the Code for all wireless facilities.
FCC’s order affects primarily small cells with implications beyond small cell technology.
Order will affect the proliferation of small cells and wireline technology to support the wireless technology.
Expect more applications with the expectation that cities can turn around permits at faster speeds.
Height definition – unclear and could lead to absurd heights.
Antenna volumetric requirements are per antenna, no cap.
Equipment is cumulative – includes conduit, equipment box, disconnect switch. Larger volume than WA definition but includes all of the items that were originally excluded.
Need to update Macro Code
(g) Collocation, consistent with section 1.1320(d) and the Nationwide Programmatic Agreement (NPA)
for the Collocation of Wireless Antennas, Appendix B of this part, section I.B, means—
(1) Mounting or installing an antenna facility on a pre-existing structure, and/or
(2) Modifying a structure for the purpose of mounting or installing an antenna facility on that
structure.
Does not alter the definition of collocation for the purposes of 6409(a) approval.
Applicability of materially inhibit standard
Generally applicable, guidance but does not need to be specific – for example, do not need to state that it is a specific brand of paint, but can state that it must be painted to match
the pole. Other general design standards may include the amount of spacing off of the pole that is acceptable to the City or requiring that for non-wooden poles that the conduit be
placed internal to the pole.
“Aesthetic requirements that are reasonable in that they are technically feasible and reasonably directed to
avoiding or remedying the intangible public harm of unsightly or out-of-character deployments are also
permissible.”
The aesthetic requirements to be published in advance need not prescribe in detail every specification to be mandated for each type of structure in each individual neighborhood. Localities
need only set forth the objective standards and criteria that will be applied in a principled manner at a sufficiently clear level of detail as to enable providers to design and propose
their deployments in a manner that
complies with those standards.
The FCC does not appear to understand the imbalance created in this standard. The wireless providers refuse to adopt a uniform design standard. This makes it particularly difficult
to create design standards for decorative poles and in historic districts. The problem with objective criteria rather than specifics is that the poles will likely not look uniform.
Undergrounding was specifically addressed. Effective prohibition if the wireless facility cannot technically work if placed below ground. FCC suggested the BDAC model code provision
as acceptable – which allows carriers to deploy small cells on existing structures in undergrounded neighborhoods or permitted to build new structures in that area.
Minimum spacing requirements. FCC acknowledges that there may be some occasions where a minimum spacing requirement may be permissible in order to avoid excessive overhead clutter.
However, they note that they find it “difficult to envision any circumstances in which a municipality could reasonably promulgate a new minimum spacing requirement that, in effect,
prevents a provider from replacing its preexisting facilities or collocating new equipment on a structure already in use.” What is unclear about this statement is under the new definition
of collocation, it is possible to interpret this guidance as swallowing the earlier acknowledgement that spacing requirements may serve a legitimate aesthetic function – because collocation
now means attachment to a pre-existing pole. Also note that minimum spacing requirements may have downstream affects on the node build out, because if you require one pole to move
250 feet, it may require others to do so as well. It’s a little bit of a jigsaw puzzle.
Mgmt of ROW includes any conduct that bears on access to and use of the ROW, notwithstanding any attempts to characterize such conduct as proprietary.
Accusation by the FCC that cities are using their proprietary roles to effectuate a general municipal policy disfavoring wireless deployment in the ROW. FCC concludes that Congress
did not intend to allow cities to rely on their ownership of poles within the ROW as a pretext to advance regulatory objectives such as aesthetic requirements or market based fees.
Since municipalities are operating in a regulatory capacity – the FCC can determine what is considered fair and reasonable compensation.
Existing Agreements – Questionable if the FCC Order Affects them.
We note that courts have upheld the Commission’s preemption of the enforcement of
provisions in private agreements that conflict with our decisions. We therefore do not exempt existing
agreements (or particular provisions contained therein) from the statutory requirements that we interpret
here. That said, however, this Declaratory Ruling’s effect on any particular existing agreement will
depend upon all the facts and circumstances of that specific case. Without examining the particular
features of an agreement, including any exchanges of value that might not be reflected by looking at fee
provisions alone, we cannot state that today’s decision does or does not impact any particular agreement
entered into before this decision. (para 66)